The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.465 of 2022 Santosh Kumar Prusty …. Appellant Mr.S. Das, Advocate -Versus- Iswar Chandra Sejpada and Another Respondents Mr. G.P. Dutta, Advocate ….
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 16.02.2024 I.A. No. 1012 of 2022 Order No. 07. 1. Instant petition under Section 5 of the Limitation Act is filed by the claimant appellant for condonation of delay in filing of the appeal on the ground stated therein. 2. No objection is filed by the respondents. 3. However, Mr. Dutta, learned counsel for respondent No.2 Insurance Company is present and a formal objection received from him. 4. Learned counsel for the claimant appellant submits that the delay should be condoned in the interest of justice accepting the explanation offered. 5. Considering the reason assigned and submission of learned counsel for the claimant appellant, the Court is inclined and in favour of condoning the delay which has occasioned infilling of the appeal. Page 1 of 4 6. Accordingly, I.A. stands allowed. Consequently, the delay of 67 days in filing the appeal by the claimant appellant is hereby condoned. (R.K.Pattanaik) Judge MACA No.465 of 2022 03. 1. Heard Mr. Das, learned counsel for the claimant appellant and Mr. Dutta, learned counsel for respondent No.2 Insurance Company. 2. None appears for respondent No.1, namely, owner of the offending vehicle. 3. Instant appeal is filed by the claimant appellant for enhancement of the compensation directed by the learned Tribunal in MAC No.58 of 2018 on the grounds stated therein. 4. A calculation sheet is filing in Court today by Mr. Das, learned counsel for the claimant appellant serving a copy of the same on Mr. Dutta, learned counsel for respondent No.2 Insurance Company. 5. In fact, learned 1st M.A.C.T, Mayurbhanj, Baripada while disposing of MAC No.58 of 2018 by an award dated 25th March, 2022 allowed compensation in favour of the claimant for an amount of Rs.25,01,520/- payable with interest @ 7% per annum from the date of filing of the claim application till the actual payment made. 6. Mr. Das, learned counsel for the claimant appellant submits that the learned Tribunal did not take cognizance of the parameters highlighted upon by the Apex Court in Mohan Soni Vrs. Ram Avtar Tomar and others 2012(1) T.A.C 385 (S.C), wherein, it has been Page 2 of 4 held that the loss of earning capacity in case of present kind may be as high as 100% but in no case, it would be less than 90%. It is submitted that the claimant received grievance injuries and was assessed with 80% permanent disability, however, assessed it at 60% functional disability which is incorrect in view of the decision in Mohan Soni(supra), hence, therefore, an amount of Rs. 2,99,754/- is to be added over and above the compensation allowed and satisfied in the meantime. On the other hand, Mr. Dutta, learned counsel for respondent No.2 Insurance Company would submit that the functional disability since assessed at 60% with permanent disability of 80%, the loss in future income has rightly been assessed at and fixed at 60%, so therefore, the impugned award with the compensation of Rs.25,01,520/- should not be disturbed. 7. The record reveals that the claimant to be a cultivator and there is no denial to the fact that 80% permanent disability was admitted by the learned Tribunal and assessed the functional disability and loss in future income at 60%. In so far as, the decision in Mohan Soni(supra) is concerned, the Apex Court while dealing the case of computation of compensation held and observed that it would be impossible for the claimant to find any other job and by looking at the evidence received therein observed that it is all very well to theoretically talk about cart puller changing his work and becoming a vegetable vendor but the computation of compensation payable to a victim the motor accident, who suffered some serious permanent disability resulting from the loss of limb etc. should not take into account such indeterminate factors and any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. It has been Page 3 of 4 further held therein that the loss of earning capacity of the claimant therein should be assessed as high at 100% and in no case to be less than 90%. In the case at hand, there is no denial to the fact that the claimant appellant sustained injuries with 80% permanent disability. The claimant at the time of the alleged accident was about of 48 years old. 8. Considering the materials on record and submissions of learned counsel for respective parties and the decision of the Apex Court in Mohan Soni (supra) when a disability of 80% was held, the learned Tribunal ought to have held such functional disability and loss in future income not at 60% but at least at 80% since the nature of injury received stated to be Paraparesis. Such assessment at 90% towards loss of earning capacity by the decision of Apex Court in Mohan Soni(supra) refers to a case by the claimant having an amputation was aged about 55 years. In such view of the matter, having reached at conclusion that the loss of future income should be assessed at 80%, the compensation should therefore be accordingly enhanced by Rs.1,99,836/- as the same would serve the purpose and meets the ends of justice. 9. Accordingly, it is ordered. 10. In the result, appeal stands allowed. Consequently, the impugned award in MAC No.58 of 2018 by the learned 1st M.A.C.T, Mayurbhanj is hereby modified to the extent as aforesaid with a direction to respondent No.2 Insurance Company to pay an additional amount of Rs.1,99,836/- @ 6% per annum within eight weeks from today which on being so deposited shall be immediately disbursed in favour of the claimant appellant. Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Rojina Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 19-Feb-2024 13:04:51 (R.K. Pattanaik) Judge Page 4 of 4